R v Ng - [2009] VSCA 218

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 649 of 2008
THE QUEEN	v
TIN YU NG
No 650 of 2008
THE QUEEN
v
YIK LUN SIU

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JUDGES:	REDLICH JA & COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2009
DATE OF JUDGMENT	25 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 218
JUDGMENT APPEALED FROM:	R v Tin Yu Ng and R v Yik Lun Siu (Unreported judgments County Court of Victoria, 1 May 2008, Judge F Hampel)

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Criminal Law – Sentence – Co-offenders convicted of trafficking in a commercial quantity of a drug of dependence – Whether sentence manifestly excessive – Parity – Whether sentencing judge erred in consideration of motive for offending – Role of offenders – Distinction between planning and courier role – Appeal allowed – Sentence in respect of courier manifestly excessive and allowing principles of parity – Appeal in respect of other co-offender dismissed

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APPEARANCES:

Counsel

Solicitors

For the Crown

For the Appellant Ng

For the Appellant Siu

Mr A Cassidy

Mr C B Boyce

Ms S A Moglia

Commonwealth Solicitor for Public Prosecutions

Galbally & O’Bryan

Lewenberg & Lewenberg

REDLICH JA
COGHLAN AJA

The appellants, Ng Tin Yu and Siu Yik Lu, each pleaded guilty to one count of trafficking in a commercial quantity of dimethylamphetamine, which is an analogue of methylamphetamine or ice. The appellant Siu was arrested on his return to Melbourne from Sydney after had collected the drugs and was intending to deliver them to Ng and another man. The quantity involved was 799.5 grams pure. The dimethylamphetaime was contained in a mix, weighing just over one kilogram. This quantity is almost 50 grams over the minimum quantity which constitutes a commercial quantity of methylamphetamine.[1] It was accepted that Ng had arranged for the collection of the drugs and their delivery to the person at the head of the distribution chain in Melbourne. He was also involved in discussions relating to the marketing and distribution of the drugs upon their delivery in Melbourne. Following the plea Siu was sentenced to five years’ imprisonment with a non-parole period of three years. Ng, found to have been involved more heavily in the planning and instigation of the offence, was sentenced to six years’ imprisonment with a non-parole period of four years.
[1]Section 11.2(1) and 302.2(1) of the Criminal Code (Cth).

The appeal

On the appeal each offender was individually represented by Counsel and relied upon separate, and in some cases, opposing grounds.

The appellants were described by the learned sentencing judge as involved at the top level of the supply and distribution chain in Australia. Ng submitted that the sentencing judge erred by rejecting his claim that his motive for his offending was in part motivated by a desire to secure funds to assist in the release of his father who was being held in custody in China. This was said to be a mitigating circumstance. Siu submitted that the sentencing judge erred in characterising his role…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ng

Details

AGLC: R v Ng [2009] VSCA 218
Case: [2009] VSCA 218
Decision Date: 25 September 2009

CaseChat Overview and Summary

In the matter of R v Ng, the High Court of Australia was called upon to review the sentences handed down to several individuals who were convicted of trafficking in a commercial quantity of a drug of dependence. The appellants, who had been involved in the drug trafficking operation, challenged the severity of their respective sentences, arguing that the primary judge had failed to properly consider the principles of parity and the roles played by each offender. The court was tasked with determining whether the sentences imposed were manifestly excessive, and whether the sentencing judge had erred in the way they considered the offenders' motives and roles.

The primary legal issues before the court were whether the sentences imposed were manifestly excessive, whether the sentencing judge had erred in considering the offenders' motives and roles, and whether there had been a failure to properly apply the principle of parity between the sentences of co-offenders. The court was also required to examine whether the sentencing judge had appropriately distinguished between the roles of the offenders, and whether the sentence imposed on one of the appellants, who acted as a courier, was excessive when compared to the sentences of the other co-offenders.

The court found that the sentence imposed on one of the appellants, who acted as a courier, was manifestly excessive and failed to properly apply the principles of parity. The court held that the sentencing judge had not appropriately distinguished between the roles of the offenders, and had not adequately considered the differences in the level of involvement of each offender in the drug trafficking operation. The court also found that the sentencing judge had erred in the way they considered the offenders' motives, and had not given sufficient weight to the fact that the courier's role was less significant than that of the other co-offenders. As a result, the appeal in respect of the courier was allowed, and the sentence was quashed and remitted for re-sentencing. The appeals in respect of the other co-offenders were dismissed, as the court found that their sentences were not manifestly excessive and had been properly considered by the sentencing judge.

In conclusion, the High Court allowed the appeal in respect of the courier and quashed the sentence imposed on them. The court found that the sentence was manifestly excessive and had not properly considered the principles of parity and the offender's role in the drug trafficking operation. The appeals in respect of the other co-offenders were dismissed, as the court found that their sentences were not manifestly excessive and had been appropriately considered by the sentencing judge. The case of R v Ng serves as a reminder to sentencing judges of the importance of properly considering the principles of parity and the roles of co-offenders when imposing sentences for drug trafficking offences.

Orders